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Feds: Keep no-reporter’s-privilege ruling

The Justice Department urged a federal appeals court Monday not to disturb a ruling last month rejecting the notion of a reporter's privilege in criminal cases, but a top official said the department has not made a final decision yet about whether to press forward with its five-year-long drive to obtain New York Times reporter James Risen's testimony in the underlying leak prosecution.

The filing (posted here) asks the U.S. Court of Appeals for the 4th Circuit not to take up a request from Risen to rehear the case en banc following a 2-1 ruling last month that overturned a trial judge's decision that Risen was largely protected from testifying about his sources in the prosecution of ex-CIA officer Jeffrey Sterling.

"None of the decisions Risen cites holds that a reporter who witnesses a crime and promises not to identify the perpetrator...has a privilege not to testify in a criminal proceeding. Indeed, every court of appeals to confront that situation has agreed with the panel," the brief argues.

The filing also dismisses as "incorrect" arguments from Risen and a variety of media organizations (including POLITICO) that changes Attorney General Eric Holder recently made in guidelines for federal investigations involving journalists should lead the department to reverse its stance in demanding Risen's testimony. Risen has said he will go to jail rather than reveal his sources.

"Although the Department has made significant changes to parts of its internal guidelines—in particular, to the guidelines governing the notice that must be given to reporters before the government may obtain their business records through legal process—the basic requirements Risen cites (that the information is essential, unavailable from another source, and sought as a last resort) have been in place for decades and have not changed," the filing says.

Despite the hardline stance taken in the new legal brief, a Justice Department official said Monday that officials there are still mulling how to resolve the standoff over Risen's testimony.

"This filing should be interpreted for what it is: a statement of the department's belief that the case was properly decided last month and that a rehearing is unnecesssary," said the senior official, who spoke on condition of anonymity. "The next steps in the prosecution are still being considered."

A continued no-holds-barred drive for Risen's testimony would seem difficult to square with President Barack Obama's declaration in a May speech that "Journalists should not be at legal risk for doing their jobs."

Although 48 states have either a media shield law or court rulings protecting journalists from testifying in some circumstances, the Justice Department filing disputes Risen's contention that there is an "overwhelming consensus" in favor of a reporter's privilege, which has been unevenly applied in federal courts. The brief notes that the Obama Administration has supported a federal media shield law, even as it presses its campaign to prevent the courts from providing such protection on their own or finding it to be implicit in the First Amendment.

"With the Administration’s support, Congress is currently considering such legislation to address the unique concerns raised in cases like this one, involving the criminal disclosure of national defense information," the filing says. "The panel rightly declined to intrude upon this legislative process."